As Profession Evolves, So Do A Lawyer's Duties

Published on: 
01/31/2014
Lawyers owe many duties to any number of people, but the first of any consequence is the duty owed to clients. That includes the duty of confidentiality, the duty of candid and fair dealing, and the duty of assessing reasonable charges for legal work performed.

The latter also includes the lawyer's duty to perform and deliver legal services efficiently, including through the use of technology that meets the prevailing community standard. As we have discussed previously, current rules of professional conduct thus specify technology as a factor in professional responsibility.

Next, there is a fiduciary duty to one's partners or law practice shareholders. Appellate decisions are replete with matters in which one partner sought to take advantage of another partner and violated this fiduciary responsibility; for example, a departing attorney seeks to redirect a client relationship before informing other law firm members of the departure for a new firm.

Yet another such duty arises if a bankrupt firm claims certain accounts receivable from clients when a departing lawyer has obtained not only payment of the receivables, but also funds for personal work. The trustee in bankruptcy may seek to "claw back" the amount of money obtained.

Finally, a law firm partner owes a fiduciary duty to lenders who expect parties to a line of credit or other firm loan to submit fair and accurate financial statements, and to keep the lender informed of any negative factors that might impact the firm's credit over the duration the loan.

Increasingly, there is a "new" duty of civility and professional conduct. Some bar associations have actually enacted a civility provision in the rules of professional conduct; others have merely interpreted it as a requirement of a responsible lawyer.

Bar associations, likewise, require a duty to the community in the form of pro bono service. In fact, recent enactments by New York and other states, soon to include California, specify specific hours of service to the public as part of licensure.

An "estate plan for the practice" is another emerging duty. The idea here is to provide for the continuity of the law practice in the event of death or disability of the primary lawyer. The focal point is the protection of the public such that no client is left adrift when an attorney dies or becomes disabled.

The litany of duties that a lawyer must meet also includes court dates, filing dates and the like, whether the lawyer is in the office or not. Failure to meet clients for their protection may constitute negligence and malpractice.

Some other responsibilities are less clear. Is there a duty to supervise other lawyers, particularly young associates? Partners have been found liable in a fiduciary sense for the conduct of younger lawyers. And what about teaching to go along with providing legal services. Is there a duty to the legal system to educate the public by writing and speaking?

The life of an attorney is filled with duties, responsibilities and obligations that balance the pleasures and challenges of legal practice. The issue is one of professional responsibility, and the potential penalty for failing to meet it is disciplinary action.

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